82 Ga. 770 | Ga. | 1889
Russell filed his bill against Napier, on January 12, 1887, alleging that in December, 1878, he purchased from defendant a certain tract of land, together with the right to the free and uninterrupted use of private road leading from the tract into a public road. Eor the land and for the use of this way he paid defendant $400 at the time of the purchase, but defendant made him no deed then to the land, but it was agreed at the time that defendant should make a deed to the land and right to the use of the way as soon as defendant obtained a deed. The land which complainant purchased did not lie on any public road, and the right to the private way was included in its sale and was a part of the consideration of the payment made by complainant, there being no other way leading from the land to the public road except the one purchased. Defendant had purchased the land which he sold complainant and an adjoining lot, number 268, at a sale made by the administrator of T. T. Napier, prior to the sale by defendant to complainant. Lot 268, through which the private way in question runs, adjoins-the land purchased by complainant and lies between it and the public road, and the private way mentioned had been located where complainant claims the right to use it tor a long time prior to the purchase mentioned, and has been used as a way from the land bought by complainant to the public road by T. T. Napier and those owning the land through which it passes. The land purchased by complainant and also
. The defendant answered the bill and denied every material allegation therein. He positively denied that there was any contract made between him and the complainant for the purchase of the right of way over his land, which adjoined the land purchased by the complainant. The only thing agreed on . between them about this right of way was, that he agreed to allow the complainant to use the right of way until he (the der fendant) desired to clear up the land. - In that event the road was to be closed. On the trial of the case the jury returned a verdict for the defendant. The complainant made a- motion for a new trial on the several grounds stated therein, which motion was overruled, and he excepted.
There was, therefore, no error in allowing the defendant to prove that the complainant had made another road over this land, equally as good as the one in controversy; and upon this evidence the jury was authorized to find that the road in controversy was not a way of necessity. This disposes of the complaint in the 6th ground, as to the prescriptive right of the complainant, and of the complaint in the 7th ground of the charge of the court as to the new road and way of necessity.
Judgment affirmed.